TMI Blog2023 (4) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act and deny relief as Form 67 was not filed as required under Rule 128(8) , PCIT should have been directed the AO to call for the details and decide the issue in accordance with law. PCIT was not correct to direct the AO to deny the relief claimed as per Form No. 67 on the ground that Form No. 67 was not filed in time is not correct. Therefore, we hereby modify the order passed by the ld. PCIT and direct the Assessing Officer to redo the assessment in accordance with law by affording reasonable opportunity of being heard to the assessee without influence of the order passed by the ld. PCIT - Appeal filed by the assessee is partly allowed for statistical purposes. - I.T.A. No.305/Chny/2023 - - - Dated:- 31-3-2023 - Shri V. Durga Rao, Judicial Member And Shri Manoj Kumar Aggarwal, Accountant Member For the Appellant : Shri G. Baskar, Advocate For the Respondent : Shri D. Hema Bhupal, JCIT ORDER PER V. DURGA RAO, JUDICIAL MEMBER: This appeal filed by the assessee is directed against the order of the ld. Principal Commissioner of Income Tax (Central), Chennai-1, Chennai dated 30.03.2022 relevant to the assessment year 2017-18. 2. The appeal fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment and no action was required to be taken on the order of the ld. PCIT. The ld. Counsel for the assessee has submitted that on the basis of the advice given by the CA, the assessee has not filed appeal. He also pointed out from para 14 of the 263 order passed by the ld. PCIT that the ld. PCIT has directed the Assessing Officer to redo the assessment and submitted that the delay was only on the advice given by the CA is neither intentional nor wanton. By placing judgement in the case of Areva T D India Ltd. v. JCIT 287 ITR 555 (Madras) and pointing out para 4 to 8, the ld. Counsel for the assessee prayed for condonation of delay in filing the appeal. He also relied on the judgement of the Hon ble Madras High Court in the case of CIT v. Indian Gospel Fellowship Trust [2010] 194 Taxman 167 (Mad) and referred to para 16 to 19. 3. On the other hand, the ld. DR has submitted that the affidavits filed by the assessee as well as her CA are not correct and it is only an afterthought and the delay may not be condoned. He relied on the decisions in the case of M/s. Senthil Murugan Jewellers v. DCIT in I.T.A. No. 768/Chny/2020 dated 14.12.2022, in the case of Mrs. Preeti Madhok v. ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 90 read with Rule 128, an assessee being a resident shall be allowed a credit for the amount of any foreign tax paid by him as per Rule 128(8) of the Income Tax Rules. Moreover, there was no proof for filing Form No. 67 with documents on or before the due date of filing of return under section 139(1) of the Act for claiming foreign tax credit in the assessment records available except a TDS certificate issued by M/s. Medtronics Plc (Ireland). The ld. PCIT has further noted that the Assessing Officer has not considered the above aspects while passing the assessment order dated 26.12.2019 and thus, he was of the view that the assessment order was erroneous and prejudicial to the interests of Revenue. Accordingly, the ld. PCIT issued show-cause notice dated 04.03.2022 proposing to revise the assessment. In response to the show cause notice, the assessee has filed written submissions vide letter dated 18.03.2022. After considering the submissions of the assessee and not convinced with the explanations of the assessee, the ld. PCIT has held that the assessment order dated 26.12.2019 passed by the Assessing Officer is erroneous and prejudicial to the interests of revenue. Accordingly, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous and prejudicial to the interest of Revenue. He also pointed from the order of the ld. PCIT that the assessee was not sure whether the tax has been paid under Indo US Treaty or Indo-Irish Treaty. Therefore, the ld. PCIT has rightly directed the Assessing Officer to deny the relief claimed as per Form 67, which was not filed within the due date as required by Rule 128(8) and CBDT notification No. 9 dated 19.09.2017 and strongly supported the order passed by the ld. PCIT. 8. We have heard both the sides, perused the materials available on record and gone through the orders of authorities below including paper book filed by the assessee and the written submissions of the ld. DR. In this case, the Assessing Officer made detailed enquiry in respect of claim made by the assessee at ₹.1,20,93,988/- by way of calling for the details under section 142(1) of the Act on various occasions and after considering the details, the Assessing Officer has allowed the claim of the assessee. The ld. PCIT, by exercising the power conferred under section 263 of the Act issued a show-cause notice on the ground that the Assessing Officer has not examined the tax credit vis- -vis sub-rule 8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined. It is also a fact that the Assessing Officer has not followed the Notification No. 9 dated 19.09.2017 issued by the CBDT. However, we are of the opinion that the order passed by the Assessing Officer cannot be said that no enquiry was made, in fact, detailed enquiry was made. However, no enquiry was made in respect of Form No. 67 vis- -vis rule 128(8). Therefore, it cannot be said that the assessment order was totally erroneous and prejudicial to the interest of Revenue. In our opinion, instead of setting aside the order passed under section 143(3) of the Act and directing the Assessing Officer to determine the quantum of relief that could be availed under sections 90/91 of the Act and deny relief as Form 67 was not filed as required under Rule 128(8) , the ld. PCIT should have been directed the Assessing Officer to call for the details and decide the issue in accordance with law. In our opinion, the ld. PCIT was not correct to direct the Assessing Officer to deny the relief claimed as per Form No. 67 on the ground that Form No. 67 was not filed in time is not correct. Therefore, we hereby modify the order passed by the ld. PCIT and direct the Assessing Officer to redo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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